Citation Nr: 0409259
Decision Date: 04/08/04 Archive Date: 04/16/04
DOCKET NO. 02-10 450 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to a compensable original disability rating for
Reiter's syndrome.
ATTORNEY FOR THE BOARD
B. P. Tierney, Counsel
INTRODUCTION
The veteran served on active duty from September 1997 to
September 2001.
This appeal arises from an adverse decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Detroit,
Michigan, dated in March 2002, that established service
connection for Reiter's syndrome and residuals of a meniscus
tear of the left knee. The noncompensable ratings assigned
were duly appealed.
The veteran's claim for an increased rating for residuals of
a meniscus tear of the left knee was addressed in a Board of
Veterans' Appeals (Board) decision dated in January 2003.
The present issue was remanded for compliance with the duties
to notify and assist in June 2003. Review of the actions
performed by the RO reveal that the mandate of that remand
has been fulfilled. Stegall v. West, 11 Vet. App. 268
(1998).
FINDINGS OF FACT
1. The RO has provided all required notice and obtained all
relevant evidence necessary for an equitable disposition of
the veteran's appeal.
2. The veteran's Reiter's syndrome is not active.
3. The veteran's Reiter's syndrome produces limitation of
extension in the veteran's right knee of 10 degrees.
4. The veteran's Reiter's syndrome produces pain on motion
with extension of the veteran's back.
CONCLUSIONS OF LAW
1. The criteria for a 10 percent, but no greater, disability
evaluation for Reiter's syndrome of the right knee have been
met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7,
4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5260,
5261.
2. The criteria for a 10 percent, but no greater, disability
evaluation for Reiter's syndrome of the lumbar spine have
been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3,
4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002,
5292.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
In a Precedent Opinion dated in December 2003, the VA General
Counsel found that the duty to notify provisions of
38 U.S.C.A. § 5103 are not applicable to issues arising from,
or "downstream" from, the grant of service connection such
as claims for an earlier effective date or disagreement with
the initial rating of a newly service-connected disability.
See Vet. Aff. Op. Gen. Couns. Prec. 8-2003, VAOPGCPREC 8-
2003, 2003. Precedent opinions of the chief legal officer of
the Department, and regulations of the Department, are
binding on the Board. 38 U.S.C.A. § 7104(c) (West 2002).
In any event, the Board finds that VA has satisfied its
duties to the veteran under the Veterans Claims Assistance
Act of 2000 (VCAA) and 38 U.S.C.A. § 5103. In a September
2003 letter, the RO notified the veteran of the information
and evidence needed to substantiate and complete his claim,
and of what part of that evidence was to be provided by him
and what part VA would attempt to obtain for him.
38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1)
(2003); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
This letter also contained language in effect advising the
veteran to submit or identify any evidence that he believed
would help the RO decide his claim. See Pelegrini v.
Principi, 17 Vet. App. 413 (2004), cf. VA O.G.C. Prec. Op.
No. 1-2004.
The Board finds that the veteran was not prejudiced by the
post-initial adjudication VCAA notification. Throughout the
course of the appeal, the veteran has been repeatedly advised
of the evidence of record and the applicable rating criteria.
He has continued to submit or identify additional evidence in
support of his appeal and that evidence was duly considered
by the RO. Indeed, in the October 2003 Supplemental
Statement of the Case, the RO indicated that it had again
reviewed the veteran's claims folder in its entirety. Thus,
the Board finds that the veteran received the same benefit of
the RO's full consideration of the all the evidence of
record, as he would have received had he received the VCAA
notice prior to initial adjudication. Moreover, the Board
notes that the effective date of any award based on
additional evidence would have been fixed in accordance with
the claim that was the subject of the initial adjudication.
38 C.F.R. § 3.156(b) (2003) (new and material evidence
received prior to the expiration of the appeal period, or
prior to the appellate decision, if a timely appeal has been
filed, will be considered as having been filed with the
claim, which was pending at the beginning of the appeal
period); see also 38 C.F.R. § 3.400(q)(1) (2003) (providing
that when new and material evidence is received within the
appeal period, the effective date will be set as if the prior
denial had not been made). For the reasons set forth above,
the Board finds that VA has fully satisfied its notification
duties to the veteran and that he has not been prejudiced by
any post-initial adjudication notification. Bernard v.
Brown, 4 Vet. App. 384 (1993).
The Board finds that VA has also fulfilled its duty to assist
the veteran in obtaining evidence needed to substantiate his
claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)
(2003). Consistent with this duty, the Board arranged for
examinations of the veteran and obtained additional VA
records. It is also noted that the medical records from the
veteran's recent service are on file, as are relevant post-
service clinical records. 38 U.S.C.A. § 5103A(c) (West
2002); 38 C.F.R. § 3.159(c)(1) - (3) (2003). There is no
indication of outstanding records, nor is there a need for
another VA medical opinion, given the thoroughness of the
examination reports recently obtained by the RO. 38 U.S.C.A.
§ 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2003). For
all the foregoing reasons, the Board concludes that VA's
duties to assist the veteran have also been fulfilled.
Law and Regulation
Disability ratings are based on the average impairment of
earning capacity resulting from disability. 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. § 4.1 (2003). The average
impairment as set forth in VA's Schedule for Rating
Disabilities, codified in 38 C.F.R. Part 4, includes
diagnostic codes which represent particular disabilities.
Generally, the degrees of disabilities specified are
considered adequate to compensate for a loss of working time
proportionate to the severity of the disability. Id. If an
unlisted condition is encountered it is rated under a closely
related disease or injury in which the functions affected,
the anatomical localization, and the symptomatology are
closely analogous. 38 C.F.R. § 4.20 (2003).
The determination of whether an increased evaluation is
warranted is to be based on review of the entire evidence of
record and the application of all pertinent regulations. See
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These
regulations include, but are not limited to, 38 C.F.R. § 4.1,
which requires that each disability be viewed in relation to
its history.
The appeal being from the initial rating(s) assigned upon
awarding service connection, the entire body of evidence is
for equal consideration. Consistent with the facts found, the
rating may be higher or lower for segments of the time under
review on appeal, i.e., the ratings may be "staged."
Fenderson v. West, 12 Vet. App. 119 (1999); cf. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994) (where an increased rating
is at issue, the present level of the disability is the
primary concern).
The record before the Board contains service medical records
and post-service medical records, which will be addressed as
pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49
(2001) (a discussion of all evidence by the Board is not
required when the Board has supported its decision with
thorough reasons and bases regarding the relevant evidence).
In determining a rating for a disability, the Board may only
consider those factors that are included in the rating
criteria provided by regulations for rating that disability.
To do otherwise would be legal error as a matter of law.
Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v.
Derwinski, 2 Vet. App. 625, 628 (1992). As a result, the
Board will only address medical records insofar as they
pertain to the relevant rating criteria.
Once the evidence is assembled, the Secretary is responsible
for determining whether the preponderance of the evidence is
against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990). If so, the claim is denied; if the evidence is in
support of the claim or is in equal balance, the claim is
allowed. Id.
Regarding musculoskeletal disabilities, such as the
appellant's lumbar spine, knee and upper extremity
disabilities, functional loss contemplates the inability of
the body to perform the normal working movements of the body
with normal excursion, strength, speed, coordination and
endurance, and must be manifested by adequate evidence of
disabling pathology, especially when it is due to pain.
38 C.F.R. § 4.40 (2003). A part that becomes painful on use
must be regarded as seriously disabled. Id.; see also DeLuca
v. Brown, 8 Vet. App. 202 (1995). Both limitation of motion
and pain are necessarily recorded as constituents of a
disability. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2003); see also
DeLuca, 8 Vet. App. 202.
A disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
38 C.F.R. § 4.40 (2003); see DeLuca v. Brown, 8 Vet. App.
202, 205-06 (1995).
As regards the joints, the factors of disability reside in
reductions of their normal excursion of movements in
different planes. Inquiry will be directed to less or more
movement than normal (due to a variety of reasons, to include
ankylosis), weakened movement, excess fatigability,
incoordination, impaired ability to execute skilled movements
smoothly, pain on movement, swelling, or deformity or atrophy
of disuse. 38 C.F.R. § 4.45 (2003).
Rating Criteria
The appellant's diagnosed Reiter's syndrome is rated
noncompensably under Diagnostic Code (DC) 7599-5002.
Reiter's syndrome does not have a specific diagnostic code.
When a veteran is diagnosed with an unlisted condition, it
must be rated under an analogous diagnostic code. 38 C.F.R.
§§ 4.20, 4.27 (2003). The diagnostic code is "built-up" by
assigning the first two digits from that part of the schedule
most closely identifying the part of the body involved and
then assigning "99" for the last two digits for all
unlisted conditions. 38 C.F.R. § 4.27. Then, the disability
is rated by analogy under a diagnostic code for a closely
related disability that affects the same anatomical functions
and has closely analogous symptomatology. Id. Therefore, his
service-connected Reiter's syndrome is rated according to the
analogous condition of rheumatoid arthritis under DC 5002.
Under DC 5002, with constitutional manifestations associated
with active joint involvement, that are totally
incapacitating a 100 percent rating is assigned. With less
than the criteria for 100 but with weight loss and anemia
productive of severe impairment of health or severely
incapacitating exacerbations occurring 4 or more times a year
or a lesser number over prolonged periods a 60 percent rating
is assigned. A 40 percent evaluation requires symptom
combinations productive of definite impairment of health
objectively supported by examination findings or
incapacitating exacerbations occurring three or more times
per year. A 20 percent disability rating is assigned for
rheumatoid arthritis as an active process with 1 or 2
exacerbations a year in a well-established diagnosis.
The condition may also be rated for chronic residuals. For
residuals such as limitation of motion or ankylosis,
favorable or unfavorable, rheumatoid arthritis should be
rated under the appropriate diagnostic codes for the specific
joint or joints involved. Where, however, the limitation of
motion of the specific joint or joints involved is
noncompensable under the codes, a rating of 10 percent is
warranted for each major joint or group of minor joints
affected by limitation of motion, to be combined, not added,
under Diagnostic Code 5002. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. The
ratings for the active process will not be combined with the
residual ratings for limitation of motion or ankylosis.
38 C.F.R. § 4.71a, Diagnostic Code 5002 (2003).
For the purpose of rating disability from arthritis, the
shoulder, elbow, wrist, hip, knee, and ankle are considered
major joints. The lumbar vertebrae are considered a group of
minor joints, ratable on parity with a major joint. The
lumbosacral articulation and both sacroiliac joints are
considered to be a group of minor joints, ratable on
disturbance of lumbar spine functions. 38 C.F.R. § 4.45
(2002).
Factual Background
The veteran separated from service in September 2001. Review
of the treatment notes subsequent to the veteran's service,
reveals he was first treated by VA in March 2002. At that
time he noted aching in his joints. He was seen for
gastrointestinal problems, including a colonoscopy, later in
2002. Possible diagnoses of irritable bowel syndrome were
considered. An August 2002 colonoscopy was normal.
He was seen by the arthritis clinic in August 2002. He was
noted to have chronic stiffness and arthralgias that flared
with weather changes. His pain was most prominent in his
hands, elbows, knees, wrists, and lower back. He had
occasional joint swelling, but no return of a rash. He had
had multiple courses of steroids without help. He reported
that he had not noticed any relation between his
gastrointestinal symptoms and arthritis. His stiffness
lasted up to 30 minutes.
Physical therapy notes dated in August 2002 noted the veteran
ambulated without assistive device. He reported occasional
trouble ascending or descending stairs due to pain.
The veteran was examined by VA in August 2002. He was noted
to be a student and not working. Subsequent to problems with
his left knee meniscal tear during service, his right knee
also became sore and he had some stiffness of all the other
joints like his elbows and back. He was taking medication
for arthritis.
On physical examination he was noted to walk well with a
normal heel-toe gait. He stood 5 feet 10 inches tall and
weighed 165 pounds. Squatting was possible without any
problem. Left knee examination revealed a range of motion
from 0-130 degrees. Right knee examination revealed a full
range of motion without any complaints. Elbows and shoulders
showed full range of motion without any complaint. X-ray
examination of both knees was normal. There was no evidence
of arthritis. Blood examination report revealed negative
rheumatoid factor and the sedimentation Wintrobe test was 2
mm, the reference range was 0-12.
The examiner diagnosed a history of pain in his left knee
with occasional swelling, status post arthroscopic surgery
for meniscus injury. There was adequate range of motion in
both knees without any arthritic manifestation. Other joint
tests showed full range of motion without any complaints.
There was also noted to be a history of Reiter's syndrome.
In December 2002, the veteran reported increasing pain in his
knees and wrists, swelling in his hands, and pain in his
lower back joints. His pain was worst in the morning,
resolving after moving. His longest period of stiffness was
twenty minutes. He was noted to have no active synovitis.
He had no pain on palpation of the medial aspect of the wrist
joints and mild pain on palpation of the lateral joints. His
knees had mild crepitance, and he had pain on palpation over
the medial collateral ligament. He had pain on palpation of
the sacroiliac joints.
In March 2003, the veteran was seen in the arthritis clinic.
He was noted to have morning stiffness lasting about 15
minutes at its worst. He had intermittent joint pains
lasting minutes to half an hour, often with some swelling of
the joints. His pain was in this elbows, hands, low back and
knees. He had no systemic symptoms and did not notice much
help from salsalate. He was able to do most of what he wants
although he did complain of pain. On examination his joints
had a normal range of motion. There was no effusion or
warmth. He had some tenderness of the left elbow and the
ulnar styloid.
Most recently the veteran was examined in April 2003. After
review of the veteran's claims folder and physical
examination, the examiner noted that the veteran had
developed a reactive arthritis after an acute illness with
diarrhea in which he had arthralgias, swelling, and a rash
while in service. He was diagnosed in 2000 as having
Reiter's syndrome. He had improvement with a multidrug
regimen including prednisone. Since then the veteran had not
had recurrence of the rash, but had had intermittent
arthralgias associated with joint swelling. He reported
approximately 15 minutes of morning stiffness and
intermittent joint pains lasting several minutes to up to a
half an hour, occasionally with some swelling of his joints.
This occurred in his elbows, hands, low back and knees. The
stiffness usually resolved after about 10 minutes.
The veteran did not use any devices for his joints and had
not had any surgeries. He was not taking any medications
other than over-the-counter Tylenol. The veteran did not
notice improvement with salsalate.
His laboratory workup at the Veterans Hospital had included a
negative rheumatoid factor, normal complements, normal iron
studies, as well as a normal Westergren's sedimentation rate.
The veteran related how the arthralgias affected his life.
He was then a student and he believed that when he developed
intermittent pain that it slowed him down while taking notes.
This particularly could occur in his elbows and hands.
On physical examination, the veteran was noted to be a well-
developed man in no acute distress. His posture and gait
were within normal limits. His back examination revealed
normal posture, musculature and alignment. There was no
evidence of spasm. His back was nontender to palpation. He
was tender over his right sacroiliac joint. On range of
motion of his back, he had flexion to 95 degrees without
pain. He had extension to 35 degrees with pain. He had left
lateral flexion and right lateral flexion to 40 degrees
without pain. He had rotation to the right to 35 degrees and
rotation to the left to 30 degrees without pain.
His elbows were nontender to palpation. There was no
effusion, warmth, or erythema of the elbows. There was no
evidence of active synovitis of the elbows. His bilateral
elbows flexed to 145 degrees and extended to 0 degrees
without pain, weakness or fatigue. His right elbow supinated
to 85 degrees and pronated to 80 degrees without pain,
weakness or fatigue. His left elbow supinated to 75 degrees
and pronated to 80 degrees without pain, weakness or fatigue.
The veteran's bilateral wrist examination showed no effusion,
warmth or erythema. His wrists were nontender to palpation.
There was no evidence of active tenosynovitis. On range of
motion of his bilateral wrists, he had dorsiflexion to 70
degrees, palmar flexion to 80 degrees, radial deviation to 20
degrees, and ulnar deviation to 45 degrees, all without pain.
The veteran's hands were nontender to palpation. He had no
effusion, warmth or erythema of his hand joints. He had a
negative Bunnell's test. There was no evidence of active
tenosynovitis. On range of motion of his first
metacarpophalangeal joints bilaterally, he had flexion to 50
degrees, extension to 50 degrees, abduction to 70 degrees,
and on adduction his thumb could touch his hand overlying the
second metacarpal and he could touch his thumb and index
finger at the tips, this was bilateral without pain. The
interphalangeal joint of the thumb flexed to 90 degrees and
extended to 20 degrees bilaterally without pain. His
metacarpophalangeal joints flexed to 90 degrees and extended
to 30 degrees without pain bilaterally. His proximal
interphalangeal joints bilaterally flexed to 100 degrees and
extended to 0 degrees without pain. His distal
interphalangeal joints bilaterally flexed to 90 degrees and
extended to 20 degrees without pain.
His bilateral knee examination revealed no effusion, warmth
or erythema. He had no ligamentous instability bilaterally.
He had a negative patellar compression test bilaterally. His
left knee extended to 0 and flexed to 130 degrees without
pain. His right knee lacked the last 10 degrees of active
extension and flexed to 130 degrees without pain.
The examiner reviewed recent X-ray examinations. She noted
lumbosacral spine films done in June 2002 were normal, knee
x-rays done on June 24, 2002 revealed normal knee joints,
other than mild focal osteopenia without frank destruction
observed in the left tibia in the subchondral region and the
medial plateau. His bilateral sacroiliac spine joints on
June 22 were also normal. His wrist joints done on June 24,
2002 were unremarkable and his bilateral hand joints done on
April 28, 2002 were normal.
The examiner diagnosed reactive arthritis. She noted that
the veteran had been given the diagnosis of Reiter's
syndrome; however, doctors at the Veterans Hospital Arthritis
Clinic believed it could either be Reiter's syndrome or early
rheumatoid arthritis. The Arthritis Clinic did not feel
there was much inflammatory component to the arthritis
currently. They had considered methotrexate, but the
veteran's symptoms, functional status, and benign x-rays
leaned towards more conservative treatment and waiting at
that time. The examiner concluded that the veteran had a
reactive arthritis in the service, but it was not currently
possible to say that it was due to Reiter's syndrome. The
veteran did not have an active inflammatory component for his
arthritis at the time of the examination.
Analysis
In this case, the record does not indicate that the veteran
has had incapacitating episodes of Reiter's syndrome since
service. His Reiter's syndrome is not productive of definite
impairment of his health. Accordingly, the preponderance of
the evidence is against an original compensable disability
rating under Diagnostic Code 5002 for Reiter's syndrome or
rheumatoid arthritis as an active process. The Board must,
however, consider whether the appellant is entitled to a
compensable disability rating based upon residuals of
Reiter's syndrome resulting in limitation of motion of his
joints.
Review of the evidence of record indicates demonstrable
decreased range of motion in only the veteran's right knee.
In that knee, the April 2003 examiner found a limitation of
extension of 10 degrees. Pursuant to 38 C.F.R. § 4.71a DC
5261, limitation of extension to 10 degrees is rated as 10
percent disabling. The next higher rating, 20 percent
requires a limitation to 15 degrees. There is no evidence
that the veteran's right leg is so limited.
Under the anti-pyramiding provision of 38 C.F.R. § 4.14,
(2003), the evaluation of the "same disability" or the
"same manifestation" under various diagnoses is to be
avoided. The United States Court of Veterans Appeals (Court)
held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for
purposes of determining whether the appellant is entitled to
separate ratings for different problems or residuals of an
injury, such that separate evaluations do not violate the
prohibition against pyramiding, the critical element is that
none of the symptomatology for any one of the conditions is
duplicative of or overlapping with the symptomatology of the
other two conditions. The Board finds that the current 10
percent rating assigned the residuals of the veteran's left
knee meniscus repair prevent a rating for manifestation of
Reiter's syndrome in that knee. Review of the January 2003
Board decision reveals that a 10 percent disability was found
to be warranted based on some limitation of motion due to
pain.
The ranges of motion for the appellant's lumbar spine have
been shown as 95 degrees forward flexion with 35 degrees
extension backward in April 2003. Limitation of motion of
the lumbar spine is rated under DC 5292.
The Board notes that VA amended the rating criteria for
spinal disorders on several occasions during the pendency of
the veteran's appeal, with two being relevant to the rating
codes under consideration. See 67 Fed. Reg. 54345, 54349
(Aug. 22, 2002) and 68 Fed. Reg. 51454 (Aug. 27, 2003)
(codified at 38 C.F.R. 4.71a) (amending the criteria for
lumbosacral strain, degenerative disc disease, and limitation
of motion of the spine effective September 23, 2002 and
September 26, 2003). When a law or regulation changes after
the claim has been filed or reopened and before the
administrative or judicial appeal process has been concluded,
the version most favorable to the veteran applies unless
Congress provided otherwise or permitted the Secretary to do
otherwise and the Secretary did so. Karnas v. Derwinski, 1
Vet App 312-13 (1991). When amended regulations expressly
state an effective date and do not include any provision for
retroactive applicability, application of the revised
regulations prior to the stated effective date is precluded.
38 U.S.C.A. § 5110(g); DeSousa v. Gober, 10 Vet. App. 461,
467 (1997); VAOPGCPREC 3-2000. The provisions of these new
criteria are applicable to the present appeal.
The old DC 5292 provided a 10 percent disability rating for
slight limitation of motion. A 20 percent disability rating
under Diagnostic Code 5292 required moderate limitation of
motion. In order to obtain a 40 percent disability rating,
the highest available under Diagnostic Code 5292, severe
limitation of motion of the lumbar spine must be shown.
38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). The range of
motion of the veteran's spine has not been noted to be
limited. Thus, the appellant does not meet the criteria for
a compensable rating under the old diagnostic codes because
he does not currently have slight limitation of motion.
Under the new criteria, the General Rating Formula for
Diseases and Injuries of the Spine provides that limitation
of motion of the thoracolumbar spine is normal when forward
flexion of the thoracolumbar spine is zero to 90 degrees,
extension is zero to 30 degrees, left and right lateral
flexion are zero to 30 degrees, and left and right lateral
rotation are zero to 30 degrees. The Board notes that the
range of motion measured on examination equal or exceed the
normal ranges of motion. See 68 Fed. Reg. 51454 (Aug. 27,
2003) (codified at 38 C.F.R. 4.71a).
Nevertheless, a rating of 10 percent is warranted for each
major joint or group of minor joints affected by rheumatoid
arthritis with resulting limitation of motion. It is clear
the appellant does not have any consistent limitation of
motion of the spine, but he has been noted to have pain on
motion, particularly with extension. With consideration of
such factors as flare-ups and fatigability with use, the
appellant is entitled to a 10 percent disability rating for
his lumbar spine because the lumbar vertebrae and sacroiliac
are considered a group of minor joints, ratable as a major
joint. The preponderance of the evidence is against a
disability rating greater than 10 percent for limitation of
motion of the lumbar spine because the appellant does not
meet the criteria for a higher evaluation under Diagnostic
Code 5292. (new or old).
No limitation of motion has been noted in the joints of the
upper extremities. The normal range of motion of the elbow is
flexion from zero to 145 degrees. The standard ranges of
motion of the forearm are pronation from zero to 80 degrees
and supination from zero to 85 degrees. 38 C.F.R. § 4.71,
Plate I (2003). Limitation of motion of the elbow or forearm
is rated under Diagnostic Codes 5206 and 5207. A 10 percent
disability rating is available under Diagnostic Code 5206 for
limitation of flexion of either the major or minor arm to 100
degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5206 (2003). A
10 percent disability rating is also available under
Diagnostic Code 5207 for limitation of extension of the
either the major or minor arm to 45 degrees. 38 C.F.R.
§ 4.71a, Diagnostic Code 5207 (2003). A 10 percent rating is
the minimal compensable rating under either diagnostic code.
As noted, the appellant does not meet the criteria for a
compensable rating under these diagnostic codes, even using
the most severe limitation of motion shown by the appellant
on examination, because he is able to move his forearm past
the 100 degrees of flexion and he is able to extend the
forearms beyond 45 degrees to at least 15 degrees. Further,
because the appellant has shown complete pronation and
supination, he is not entitled to a compensable rating under
Diagnostic Code 5213 for impairment of supination and
pronation. See 38 C.F.R. § 4.71a, Diagnostic Code 5213
(2003). The appellant clearly shows full range of motion in
both elbows. See 38 C.F.R. § 4.71, Plate I (2002). The
veteran was not shown on examination to have pain on motion
in these joints, therefore a 10 percent rating is not in
order for pain on use or increased fatigability. The
preponderance of the evidence is against a compensable
disability rating for either elbow because the appellant does
not meet the criteria under Diagnostic Codes 5206, 5207, or
5213.
In determining the appropriate ratings for the appellant
based upon limitation of motion of his joints, the Board has
considered the overall disability picture demonstrated by the
record to arrive at the appropriate level of functional
impairment such to provide for fair compensation in this
case. In so doing, the Board has carefully considered all
applicable statutory and regulatory provisions to include
38 C.F.R. §§ 4.40 and 4.59 as well as the holding in DeLuca
v. Brown, 8 Vet. App. 202 (1995), regarding functional
impairment attributable to pain, particularly in light of the
fact that the appellant's disability is essentially
manifested by pain. Although the appellant has pain on
motion, the Board finds that the disability ratings granted
consider the appellant's functional loss, pain, and weakness
resulting from his Reiter's syndrome. Indeed, were the Board
not to consider these factors, a compensable evaluation for
the appellant's lumbar spine would not be warranted.
It is most favorable to the appellant to rate his Reiter's
syndrome under Diagnostic Code 5002 as residuals with
limitation of motion than as an active process. The Board
notes that, when the case is returned to the RO, re-rating of
his service-connected Reiter's syndrome may be required
because Diagnostic Code 5002 precludes the assignment of
separate rating for the active process of rheumatoid
arthritis and the residual ratings for limitation of motion
or ankylosis resulting from rheumatoid arthritis. 38 C.F.R.
§ 4.71a, Diagnostic Code 5002, NOTE (2003).
ORDER
Entitlement to a 10 percent rating, but no higher, for the
appellant's residuals of Reiter's syndrome of the right knee
is granted.
Entitlement to a 10 percent rating, but no higher, for the
appellant's residuals of Reiter's syndrome of the lumbar
spine is granted.
____________________________________________
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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